R. v. Butler (D.A.), 2008 NSCA 102

• Judge: Roscoe, Bateman and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 29, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSCA 102;(2008), 270 N.S.R.(2d) 225 (CA)

R. v. Butler (D.A.) (2008), 270 N.S.R.(2d) 225 (CA);

    865 A.P.R. 225

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.065

Her Majesty The Queen (appellant) v. David Anthony Butler, also known as David Anthony Heroux (respondent)

(CAC 294552; 2008 NSCA 102)

Indexed As: R. v. Butler (D.A.)

Nova Scotia Court of Appeal

Roscoe, Bateman and Fichaud, JJ.A.

October 29, 2008.

Summary:

The 21 year old accused drug addict robbed a taxi driver of $50 while wielding a knife. He pleaded guilty to robbery and breach of probation. The Crown sought three years' imprisonment. The accused sought a conditional sentence, with the accused attending a six month residential drug rehabilitation program. The trial judge imposed a 23 month conditional sentence subject to, inter alia, the accused attending the six month program. The Crown appealed.

The Nova Scotia Court of Appeal dismissed the appeal. Two critical issues were (1) the trial judge's failure to first determine whether a sentence of less than two years was appropriate (R. v. Proulx (J.K.D.) threshold test) and (2) whether the trial judge imposed a 23 month conditional sentence after impermissibly taking into account credit for pre-trial custody of 5.5 months. If the latter occurred, the sentence would have exceeded two years and a conditional sentence would have been precluded. The trial judge's reasons were insufficient to allow the court to resolve these issues. The court held that an appropriate sentence would have been 30 months' imprisonment followed by two years' probation. However, given the evidence of the accused's success in the program in rehabilitating himself, the court held that it was not in the interests of justice to substitute incarceration for the conditional sentence.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of accused - Reasons for sentence - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - The Nova Scotia Court of Appeal stated that "sentences for youthful offenders should, where appropriate to the circumstances, lean toward rehabilitation rather than general deterrence" - See paragraph 33.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - [See Criminal Law - Topic 5855 ].

Criminal Law - Topic 5855

Sentence - Robbery - The 21 year old accused drug addict, armed with a knife, robbed a taxi driver of $50 - The accused pleaded guilty to robbery and breach of probation - The Crown sought three years' imprisonment - The accused sought a conditional sentence, agreeing to attend a Salvation Army six month drug addiction program - The accused spent 5.5 months in pre-trial custody - The trial judge imposed a 23 month conditional sentence, including a condition that the accused attend the six month program - The Crown appealed - Two critical issues were (1) the judge's failure to first determine whether a sentence of less than two years was appropriate (R. v. Proulx (J.K.D.) threshold test), particularly where the starting point sentence for armed robbery was three years' imprisonment and (2) whether the judge arrived at a sentence of less than two years after impermissibly giving the usual two for one credit for 5.5 months of pre-trial custody, which would have resulted in a sentence exceeding two years, making a conditional sentence inappropriate - The Nova Scotia Court of Appeal held that the judge's reasons were ambiguous and insufficient to permit resolution of those issues - Given the error, the court was justified in intervening and determined that 30 months' imprisonment was an appropriate sentence - However, given the evidence of the accused's success in the drug addiction program (in light of the judge's finding that but for his addiction the accused would not be involved in the criminal justice system), his youthfulness and his determination to overcome his addiction, it was not in the interests of justice to substitute incarceration for the conditional sentence - Accordingly, the court dismissed the Crown's sentence appeal.

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - [See Criminal Law - Topic 5855 ].

Cases Noticed:

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 10].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 21].

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102; 2000 NSCA 136, refd to. [para. 23].

R. v. Bratzer (J.T.) (2001), 198 N.S.R.(2d) 303; 621 A.P.R. 303; 2001 NSCA 166, refd to. [para. 23].

R. v. Johnson (B.J.) (2007), 258 N.S.R.(2d) 386; 824 A.P.R. 386; 2007 NSCA 102, refd to. [para. 23].

R. v. Benoit (R.C.) (2007), 260 N.S.R.(2d) 376; 831 A.P.R. 376; 2007 NSCA 123, refd to. [para. 23].

R. v. Fice (L.), [2005] 1 S.C.R. 742; 333 N.R. 243; 198 O.A.C. 146, refd to. [para. 26].

R. v. R.K.A. (2006), 384 A.R. 222; 367 W.A.C. 222; 2006 ABCA 82, refd to. [para. 27].

R. v. Roulette (A.M.), [2008] Man.R.(2d) Uned. 64 (C.A.), refd to. [para. 28].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 29].

R. v. Lamouche (K.A.) (2004), 369 A.R. 293; 2004 ABQB 638, refd to. [para. 29].

R. v. Craig (S.T.) (2003), 175 O.A.C. 82 (C.A.), refd to. [para. 29].

R. v. McLean (L.J.) (2004), 357 A.R. 321; 334 W.A.C. 321; 2004 ABCA 353, refd to. [para. 29].

R. v. Abourached (N.) (2007), 259 N.S.R.(2d) 379; 828 A.P.R. 379; 2007 NSCA 109, refd to. [para. 29].

R. v. Riley (K.) (1996), 150 N.S.R.(2d) 390; 436 A.P.R. 390 (C.A.), refd to. [para. 32].

R. v. N.A.S. (2007), 220 Man.R.(2d) 43; 407 W.A.C. 43; 2007 MBCA 97, refd to. [para. 35].

R. v. Partridge (C.S.) (2005), 238 N.S.R.(2d) 373; 757 A.P.R. 373; 2005 NSCA 159, refd to. [para. 39].

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90 (C.A.), refd to. [para. 39].

R. v. Edmondson (D.T.) (2005), 257 Sask.R. 270; 342 W.A.C. 270; 2005 SKCA 51, leave to appeal refused (2005), 347 N.R. 399; 285 Sask.R. 292; 378 W.A.C. 292 (S.C.C.), refd to. [para. 39].

R. v. Parker (R.D.R.) (1997), 159 N.S.R.(2d) 166; 468 A.P.R. 166 (C.A.), refd to. [para. 40].

R. v. Symes (1989), 32 O.A.C. 102 (C.A.), refd to. [para. 40].

R. v. Shaw, [1977] O.J. No. 147 (C.A.), refd to. [para. 40].

R. v. Boucher (R.) (2004), 187 O.A.C. 378 (C.A.), refd to. [para. 40].

R. v. Hirnschall (J.) (2003), 173 O.A.C. 5 (C.A.), refd to. [para. 40].

R. v. Fox (K.S.), [2002] O.A.C. Uned. 163 (C.A.), refd to. [para. 40].

R. v. G.C.F. (2004), 189 O.A.C. 29 (C.A.), refd to. [para. 40].

Authors and Works Noticed:

Ruby, Clayton C., Sentencing (4th Ed. 1994), p. 204 [para. 32].

Counsel:

James A. Gumpert, Q.C., for the appellant;

Philip J. Star, Q.C., for the respondent.

This appeal was heard on October 15, 2008, at Halifax, N.S., before Roscoe, Bateman and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On October 29, 2008, Bateman, J.A., delivered the following judgment for the Court of Appeal.